References to sales of loans and servicing rights are usually merely false assertions to distract homeowners and lawyers from looking at what is really happened. By accepting the premise that the loan was sold you are accepting that the loan was (a) real and (b) owned by the party who was designated to appear as a “Seller.”

By accepting the premise that the servicing data and documents were transferred you are accepting that the transferor had the correct data and documents and that the designated servicer is actually in position to represent the accounting records of the party whose name was used to initiate the foreclosure.

GET FREE HELP: Just click here and submit the confidential, free, no obligation, private REGISTRATION FORM.

Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 202-838-6345. Ask for a Consult or check us out on www.lendinglies.com. Order a PDR BASIC to have us review and comment on your notice of TILA Rescission or similar document.

I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM.

Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 202-838-6345 or 954-451-1230. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).

THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
========================

As Reynaldo Reyes of Deutsche Bank said in deposition and in recorded interviews, the entire structure and actual events are “counterintuitive.” The banks count on that for good reason. Most lawyers and almost all homeowners assume that at least some of what the banks are saying is true. In fact, nearly everything they say, write or produce as “business records” is a fabrication. But homeowners, lawyers and judges buy it as though it was solid gold.

In defending homeowners from foreclosure, lawyers who win more cases than they lose do so because of their willingness to believe that the entire thing is a hoax. Their withering cross examination and use of discovery reveals the complete absence of any corroborating evidence that would be admissible in court.

Even the most “biased” judges will concede that the case for foreclosure has not been made and they rule for the homeowner. But this only happens if the lawyer takes the opposition to task.

Chase did not acquire loans from WAMU and WAMU did not acquire loans from Long Beach etc. At the time of the claimed “acquisition” those loans were long gone, having been funded or purchased by one of the big 4 investment banks, directly or indirectly (through intermediate investment banks or simple cham conduit fictitious names or entities). In fact the ONLY time that the actual debt was clearly owned by anyone was, at best, a 30 day period during which the investment bank had the debt on its balance sheet as an asset.

So all sales from any seller other than one of the investment banks is a ruse. And there are no references to sales by the investment banks because that would be admitting and accepting potential liability for lending and servicing violations. It would also lead to revelations about how many times and in how many pieces the debt was effectively sold to how many investors who were NOT limited to those who had advanced money to the investment bank for shares in a nonexistent trust that never owned anything and never transacted any business.

Similarly the boarding process is a hoax. There is generally no actual transfer of servicing even with the largest “servicers.” They are all using a central platform on which data is kept, maintained, managed and manipulated by a third party who is kept concealed using employees who are neither bonded nor trained in maintaining accurate records nor protecting private data.

There is no transfer of servicing data. There is no “boarding” and no “audit.” In order to keep up the musical chairs game in which homeowners and lawyers are equally flummoxed, the big investment banks periodically change the designation of servicers and simply rotate the names, giving each one the login and password to enter the central system (usually at a server maintained in Jacksonville, Florida).

BOTTOM LINE: If you accept the premises advanced by the lawyers for the banks you will almost always lose. If you don’t and you aggressively pound on the legal foundation for the evidence they are attempting to use in court the chances of winning arise above 50% and with some lawyers, above 65%.

To be successful there are some attitudes of the defense lawyer that are necessary.

The first is that they must believe or be willing to believe that their client deserves to win. A lawyer who thinks that the client is only entitled to his/her time or a delay of the “inevitable” will never, ever win.

The second is that they must believe or be willing to believe that the entire scheme of lending, servicing and foreclosure is a hoax. Each word and each document that a lawyer assumes to be valid, authentic and not fabricated is a step toward defeat.

The third is that the lawyer must fight to reveal the gaps, consistencies and insufficiencies of the evidence and not to prove that this is the greatest economic crime in human history. All trials are won and lost based on evidence. The burden is always on the foreclosing party or the apparent successors to the foreclosing party to prove that title properly passed.

Fourth is arguably the most important and the one that is most overlooked. The lawyer must believe or be willing to believe that the foreclosure was not initiated on behalf of any party who could reasonably described as a creditor or owner of the debt. The existence of the trust, the presence of a real trust in any transaction in which a loan was purchased, sold or settled to a trustee, and the various permutations of strategies employed by the banks are not mere technical points. They are a coverup for the fact that no creditor and no owner of the debt ever receives any benefit from a successful foreclosure of the property.

Yes it is counterintuitive. You are meant to think otherwise and the banks are counting on that with you, your lawyer and the judge. But just because something is counterintuitive doesn’t mean that it isn’t true.

It’s complicated. But as this article proudly states, Black Knight is a leading “fintech” company, meaning that it handles the technology and software for “servicing” loans in default. This is the same company that, through DOCX literally published a menu of prices for fabrication and robosigning documents several years back.

My point has been that based upon my investigations, there is no loan boarding. It is a complete fiction. This is hub and spoke management. The hub is Black Knight. “Boarding” actually consists of changing the user name and password, and perhaps not even that. So discovery should include inquiries as to whether Black Knight (or others like it) are the ones involved in the so-called transfer of data.

Consider this quote from the article: “MSP is a comprehensive, end-to-end system that encompasses all aspects of servicing – from loan boarding to default – for first mortgages and home equity loans.” (e.s.)

954-451-1230 or 202-838-6345. Ask for a Consult. You will make things a lot easier on us and yourself if you fill out the registration form. It’s free without any obligation. No advertisements, no restrictions.

They are hiding in plain sight comfortable in the knowledge that practically nobody will understand what they are really doing. This is “servicing” for the servicers. Not for the trust, not for the investors, not for the beneficiaries (if there are any), not for the obligee of the debt owed by the homeowner, not for anyone except themselves.

The naming of a trust as beneficiary under a deed of trust or mortgagee under a mortgage is in actuality the underwriter of RMBS doing business as the name of the trust, — which is a name of a presumed entity that in fact does not exist. In fact no transaction in the name of the trust occurred in which the trust paid money for any debt, note or mortgage. Thus no proceeds from the foreclosure go to the trust. Just ask.

The changing of servicers is merely a game to set up more layers and more curtains with the goal of increasing opacity. In actuality the servicers are merely pretenders acting under orders of the underwriter for the sale of fake bonds and promises issued by a “Trust” that neither exists nor receives the proceeds of sale of securities issued in its name.

Practice Hint — the issue is always legal standing: QUESTION FOR CROSS EXAMINATION: Who will receive the proceeds of liquidation of the property after foreclosure sale? HINT: IT CAN’T BE THE TRUST BECAUSE IT DOESN’T EVEN HAVE BANK ACCOUNT. Will the trust receive the proceeds? Will the beneficiaries receive the proceeds? Will the Trustee receive the proceeds? Will the Master Servicer receive the proceeds? How will the trust or the beneficiaries receive any money from the proceeds of liquidation of the property?

It’s only when you do the work — burrowing into all the data that the truth emerges. From many prior cases it has been obvious that the “boarding process” was a ruse. It was cover for the real parties who were manipulating data to suit their own needs contrary to their duties to the alleged investors and borrowers.

954-451-1230 or 202-838-6345. Ask for a Consult. You will make things a lot easier on us and yourself if you fill out the registration form. It’s free without any obligation. No advertisements, no restrictions.

Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 954-451-1230 or 202-838-6345. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).

THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

For years I have been saying and writing about the fact that the apparent servicer actually does nothing. Ocwen’s source of data capture and maintenance has been Altisource and now is supposedly being transferred to Black Knight, which we all remember is name change from LPS, who won fame by fabricating documents through its subsidiary or division, DOCX.

My educated guess is that Altisource was never the actual IT provider using the trade name “RealServicing.” It was always LPS n/k/a Black Knight and that is who is the hub in a wheel and spoke infrastructure designed to create the illusion of normal loan servicing.

Changes in servicing announced by one party or another would therefore have been just another change in musical chairs — where the names changes but the actual functions always stayed in the same place, which is why there were so many errors revealed when the REALServing platform was accessed from time to time. It reminds me when I studied auditing in my MBA program where the joke was revealed about French bookkeeping — one set for myself, one for my partner and the third for the government (and possibly a fourth for the spouse).

So when you have a witness from Ocwen who says that Ocwen “Boarded” the data or claims that the business records are those maintained by Ocwen on an IT platform controlled by Ocwen the answer is “not so fast.” As I have found in dozens of cases, the witness is unable to answer obvious questions that should have obvious answers. Follow up in your questioning and you might strike gold — once you plan out your cross examination of the robo-witness.

Altisource was under investigation by the CFPB, but the investigation was ended without charges. That investigation was “focused on the REALServicing platform and certain other technology services provided to Ocwen, including claims related to the features, functioning and support of such technology.”

The CFPB, in its lawsuit against Ocwen, claimed that REALServicing, the system Ocwen used to process and apply borrower payments, communicate payment information to borrowers, and maintain loan balance information, was riddled with errors and technologically deficient.

Over the last several months, Ocwen has reached settlements with nearly all of the states that brought regulatory action, and each of those settlements stipulated that Ocwen develop a plan to move away from REALServicing.

So the obvious take-away is that REALServicing was neither real nor a reliable basis to perform service. And that means that Ocwen’s claims to strict “boarding” of loans could not possibly be true.

But if you look deeper, you find that Altisource was not being paid or not being paid enough to justify the service. This enhances my argument that they were only a conduit for data that was at all times controlled by LPS n/k/a Black Knight.

“Fake news” is now the dominant form of spreading disinformation in our marketplace. The banks are in control of media outlets — some created by the banks — that keep spewing out false data about the foreclosure crisis being over. It isn’t true. It never was true. We still have millions more to go and that doesn’t include the new “delinquencies” that will hit the shores as the race continues to move money through false claims of securitization.

THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

—————-

see http://www.dsnews.com/headline/02-22-2017/delinquency-rate-shows-improvement

While most of the banking sector is claiming that the mortgage mess is over, the data shows that we (a) never hit any bottom and (b) that foreclosures are beginning to spike again.

The threat to the economy and market indices is a clear and present danger to our national economy and to the geographical areas that have yet to be decimated by declarations of default, foreclosure filings by strangers, and the wholesale sweep of once vibrant neighborhoods.

As we have seen many times in our history, Wall Street is one big selling machine. And the players on Wall Street will continue to sell anything that they convince others to buy regardless of quality and certainly regardless of social cost. Despite the lessons that could have been learned from the 2008 crash, the banks continue to retain ill-gotten gains siphoned out of the American economy and continue to pursue more ill-gotten gains.

The goal was and continues to be foreclosure because once the foreclosure judgment is signed there is a presumption of validity to everything that preceded the foreclosure judgment or sale. In fact, though, in nearly all cases where the “owner” is portrayed as a REMIC Trust, the trust was never used in any capacity except for invoking the name of the trust, whether it existed or not and whether or not the trust ever had any business or assets. The trust was cover for global theft.

Black Knight reports that there are now 2.8 million delinquent loans. What they do not report is that they continue the same behavior as before (when they were known as LPS), to wit: creating fake data, fake documents and fake signatures using mechanical arms and an IT platform that performs the work required while keeping the client banks safely hidden from view.

As money continues to flood the marketplace, housing prices are once again climbing far above value. Value has historically been calculated, for more than 100 years, as the relationship between housing costs and median income. While TILA creates a duty of the lender to assure that its loan products are affordable, the only way the banks make the big money is by making sure that the loans go into default. And the only way the banks can create a veil of legitimacy over their illegal scheme of false securitization claims is to foreclose — because it is the only legal outcome that protects them from lawsuits and enforcement actions.

In the current market deregulation of the banks will have little meaning — just as regulating them will mean nothing if we forbear enforcement actions. With the Court system presuming that the transactions originated were actually loans between the payee on the note and the homeowner and with legislators at every level heavily influenced or bought by the banks the burden of righting the ship falls on the victims of foreclosure — the homeowners and the investors. And since the investors have no appetite for attacking the TBTF banks, that leaves the homeowners who have scant resources to mount a credible attack on the banks — except through mass joinder actions that have been stained by insult.

THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

—————-

The Florida Supreme Court decision in Bartram reinforces the absurd — that after losing in trial court, the pretender lender can sue over and over again for “new defaults.” The court has re-written the alleged “loan contract” to mean that a loss in court means that their acceleration of the entire loan becomes de-accelerated, meaning that acceleration is merely an option hanging in the wind that doesn’t really mean anything. The decision might have consequences when the same logic is applied to other actions taken pursuant to contract. The decision on acceleration is essentially this: If the banks do it, it doesn’t count.

*

But two things remain outstanding, one of which the court mentioned in its opinion. Why did the Plaintiff lose in its “standard foreclosure”? The issues that were litigated as to the money and/or documentary trail have been litigated and are subject to res judicata. The Plaintiff, if it is the same Plaintiff, is barred from relitigating them.

*

If Plaintiff failed to prove ownership of the loan and was using fabricated void assignments and endorsements, the lifting of the statute of limitations should not help them in attempting to bring future litigation. Many other such issues were undoubtedly raised in the original case. The Plaintiff would be forced to argue that while the issues were raised, they were not actually litigated and a judgment was not entered based upon those issues.

*

The Florida Supremes took away the Statute of Limitations, up to a point (see below) but gave us the right remedy — res judicata. Even if a new Plaintiff appears, the questions remain as to how the alleged loan papers got to them remain open, as well as whether the paper represented any actual loan contract absent an actual lender.

*

And then there are the logistics that I don’t think were considered in its decision. According to the Bartram decision the act of acceleration vanishes if the Plaintiff loses. The statute of limitations does apply for past due payments that are more than 5 years old. That means, starting with the date of the lawsuit (not the demand), you count back 5 years and all payments due before that are barred by the SOL.

*

So if a Plaintiff loses the foreclosure, it can bring the action again based upon missed payments that were due within the SOL period. Of course if the Defendant won because the Plaintiff had no right or authority to collect on the DEBT, the action should be barred by res judicata. But putting that issue aside, there are other problems.

*

“Servicing” of a designated “loan account” is actually done by multiple IT platforms. The one used for foreclosure comes out of LPS/Black Knight in Jacksonville, Florida. This is the entity that fabricates documents and business records for foreclosure. It is not the the actual system used for servicing that deals in reality with the alleged borrower and accepts payments and posts them. It is incomplete. This system intentionally does not have all the documents and all the “business records” relating to the loan. For example there is no document or report that shows who was and probably still is receiving payments as though the loan were performing perfectly.

*

The decision on when and if to foreclose is always performed by LPS/Black Knight in order to prevent multiple servicers, trustees, banks and “lenders” from suing on the same loan, which has happened in the past. LPS assigns the loan to a specific party who is then named by Plaintiff. And LPS creates all the fabricated paperwork to make it look like that party is the right Plaintiff and that the business records produced by LPS can be presented as the business records of the party whose name was rented for the purpose of foreclosure. It is LPS documents that are produced in court, not the records of the named Plaintiff.

*

So here is a sample simple scenario that will illustrate the logistical problem created by the Florida Supremes: LPS issues a notice of default letter naming the claimant as XYZ, as trustee for XYZ series 2006-19B Pass Through Trust Certificates. Previously XYZ lost the foreclosure action by failing to prove that it had any relationship with the loan. The Notice of Default and right to reinstate issued by LPS on behalf of XYZ must be for payment that was within the SOL. This action of course waives the payments, fees etc that are barred by the SOL. It also assumes that the date of the letter AND THE LAWSUIT will be within the SOL period. So for example, if the last payment was on December 1, 2006 and the letter refers to a missed payment starting with January 1, 2012, the letter is proper. But if suit is not commenced until January 2, 2017, the letter is defective and the lawsuit is barred by the SOL. Further the doctrine of res judicata bars any cause of action that was litigated previously.

*

All of this leads to a court determination of what issues were previously raised, when they were raised and whether the Final Judgment in favor of the homeowner means anything.

THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

—————-

For years the banks having been gradually ramping up a PR campaign that carries the message: the foreclosure crisis is over. “Institutions” like Black Knight (formerly known as the infamous Lender Processing Services —LPS) have been issuing statements that foreclosures are essentially over. The newest round of these false pronouncements is that foreclosures have sunk to a 9 year low.

The truth is more nuanced and “counter-intuitive” as Reynaldo Reyes, VP of Deutsch Bank “asset management” said many years ago. What the banks have done (using LPS/Black Knight) is play Wackamo with the states and counties. They ramp up foreclosures to an all time high and then switch to another county. Then the report is that the county with the all time high is now declining — because the banks have moved on to another county or state.

After the decline, they come back again and ramp it back up, sometimes stopping short of another all time high.

The facts are that there have been some 9 million foreclosures since the mortgage crisis began and there will be at least another 6 million foreclosures under cover of what is being reported as a crisis that is over. There are hundreds of thousands of foreclosures that were put on hold in cases where the homeowner put up a fight. Some of them are over ten years old — and courts, rather than dismissing them for lack of prosecution or adequate prosecution have (a) let them continue and (b) blamed the homeowner for the delays. Those cases are also coming to a head now and the banks are starting to show losses in court that were never reported before because they were only pursuing cases that were uncontested.

The truth is that the banks were playing the odds. The number of homeowners who put up a fight is only around 4-6%. By putting the contested foreclosures on hold, the banks were able to get millions of fraudulent foreclosures completed at a rate of 100%. Out of the contested ones, they still have the advantage much there record of success is much lower and getting lower every day as courts wake up to the fact that the banks are not being truthful in court nor with borrowers.

The soft underbelly is that the banks were not truthful with investors, from whom they essentially stole the money that was advanced for the purchase of mortgage backed securities that were issued by empty trusts.

PRACTICE HINT: There are three basic classifications of foreclosures into which every foreclosure falls.

Foreclosures without “issues.”

Foreclosures with factual issues

Foreclosures with procedural issues.

The first two can be won and should be won 100% of the time (speaking of loans in which multiple “transfers” and claims of securitization were made). The third one can be more challenging because either the pro se litigant or an attorney made admissions or already missed deadlines or otherwise failed to raise and press appropriate defenses.

The result of winning is an involuntary or voluntary dismissal when you win, but then you have the statute of limitations to deal with when they come back and sue again on more fraudulent paperwork. Attorney fees are generally awarded as long as you included the demand in the filings for the homeowner.

By foreclosures without issues I mean an apparent “default:” that the homeowner did stop making payments before the delinquency or default letter. These cases can only be won by good trial practice: timely proper objections, watching what evidence comes in and well-planned cross examination (which means good trial preparation). If you do the work your chances of winning at trial level or appeal, if necessary are very good.

By foreclosures with factual issues I mean situations in which the “servicer” created the illusion of a default by negligently or intentionally posting payments to the wrong ledger. This includes lump sum payments for reinstatement, insurance and other matters. The “borrower” never defaulted even if the note and mortgage were valid and even if the assignments were valid. The result is dismissal usually without prejudice. But if you also show that they were lying about the transfer to the trust or other foreclosing party, the case could be dismissed with prejudice and even with sanctions.

By foreclosures with procedural issues I mean situations in which procedural errors are present that require leniency of the court to correct them in order to properly defend. This usually occurs when pro se (aka pro per) litigants attempt to represent themselves because they think they have found some magic bullet. 95% of such cases are lost thus skewing the overall percentage of wins and losses for homeowners who put up a fight.

No case falls 100% into any specific category but each case can be generally categorized using the above analysis.

In all cases the homeowners’ attorney should make every effort to destroy the case asserted by the foreclosing party through vigorous and timely objections and brutal cross examination. Depending upon the rulings on objections and motions to strike testimony or documentary evidence, the defense should rest if there are no factual issues to present. This is especially true in cases without issues. If you don’t have the defense of payment or that the demand for reinstatement was inaccurate, there is nothing to present by the homeowner except for attempts at prejudicial comments about the lawyers and the servicers etc.

In a recent (August, 2016) case I had “without issues”, Patrick Giunta and I surprised the opposition by resting at the conclusion of the bank’s case. In nonjudicial states this is not so easy to do procedurally although it is possible in isolated instances. By resting at the conclusion of the bank’s case in a judicial foreclosure, the judge is forced to consider whether the evidence on the record supports a judgment for the plaintiff. Some judges will rule for the bank by the seat of their pants.

But by using objections vigorously, we had preserved multiple issues on appeal — namely we had excluded many pieces of evidence that were vital to the Plaintiff’s case. We were fortunate to have a judge that was serious about his job of being a judge. Like a jury would do, the judge took the case, the filings and the evidence into Chambers and read every page. He concluded that there were fatally defective elements and missing elements in the Plaintiff’s case and announced judgment for the homeowner.

In the final analysis the issue is always tacitly or explicitly legal and procedural standing. And one thing to keep in mind is that trial judges are not entirely persuaded by legal argument. But they ARE persuaded by facts admitted into evidence and facts excluded from evidence.

On a final note, I want remind practitioners that the admission of an objectionable document into evidence does two things: (1) it raises an issue for appeal and (2) it opens the door to challenge the probity of the evidence admitted. Once a document is admitted into evidence, it is in — in its entirety and for all purposes and for all parties.

For example when the PSA is admitted into evidence, make sure you have examined it and raise issues on cross examination as to whether it was signed, whether the exhibits were complete etc. Of course the main exhibit is the Mortgage Loan Schedule (MLS) which never contained real loans even where the PSA was complete and in many cases has no actual MLS exhibit, thus defeating the assertion that the Trust ever acquired any loan much less the loan of your client.

================================

THE FOLLOWING ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

—————-

see http://thjf.org/2012/12/12/mortgage-backed-trusts-using-mortgage-assignments-from-docx-llc/

Article by Lynn Symoniak

On November 20, 2012, Lorraine O’Reilly Brown, the former president of mortgage-document mill, DocX, LLC, a subsidiary of Lender Processing Services, pleaded guilty in federal court in Jacksonville, Florida to conspiracy to commit mail fraud and wire fraud. DocX produced over one million mortgage assignments. These assignments were used in foreclosures across the country. Brown admitted that she knew that these assignments were being prepared to use in foreclosures.

In tens of thousands of cases, these fraudulent documents were used by mortgage-backed trusts to show that the trust acquired a mortgage. The information on these assignments was false – the trusts did not acquire the mortgages on the date set forth on these DocX Assignments.

Signatures were forged, notarizations were wrongly added to create an appearance of authenticity. Job titles were falsely claimed.

Which trusts used these phony DocX-prepared mortgage assignments? The trusts that used these Mortgage Assignments to foreclose include those listed below, with the name of the trustee following the name of the trust.